Federal Appeals Court OKs Warrantless Cell-Site Tracking

A federal appeals court said Tuesday the government may obtain cell-site information mobile phone carriers retain on their customers without a probable cause warrant under the Fourth Amendment.

The decision (.pdf) by the 3rd U.S. Circuit Court of Appeals, however, was not an outright Obama administration victory. Lower courts, the three-judge panel wrote, could demand the government show probable cause – the warrant standard – before requiring carriers to release such data to the feds.

The opinion, however, leaves the privacy issue in a legal limbo of sorts. The standard by which the government can access such records – which can be used in criminal prosecutions – is left to the whims of district court judges. Historical cell-site location information, which carriers usually retain for about 18 months, identifies the cell tower to which the customer was connected at the beginning of a call and at the end of the call.

The lower courts across the country have issued conflicting rulings on the topic and will continue to do so without appellate guidance or congressional action. The Philadelphia-based court was the first appeals court to address the issue.

But the appeals court, ruling in a narcotics case, said the Stored Communications Act, the law in question, was vague as to what standard was required.

Kevin Bankston, a privacy lawyer with the Electronic Frontier Foundation, which weighed in on the case with a friend-of-the-court brief, said the decision highlights Congress’ need to clarify the law.

“What we need at this point is a clear, nationwide standard wen it comes to government access to this personal information,” he said.

At one point, the appeals court said the law gave judges “the option” to require a warrant showing probable cause. But the court also said it was “stymied by the failure of Congress to make its intention clear.”

“The considerations for and against such a requirement would be for Congress to balance,” the appeals court wrote. “A court is not the appropriate forum for such balancing, and we decline to take a step as to which Congress is silent.”